Consentimento Informado, Consentimento Presumido e a Responsabilidade Civil médica pela violação à autodeterminação do paciente

Abstract

The informed consent is a premise in every doctor-patient relationship. Nevertheless, to consolidate this premise, it was necessary to overcome a strictly paternalistic medicine, in which the medical professional had the power to decide on all interventions to be carried out without even considering the patient’s expression of will. Nowadays, the protection of the patient’s rights to autonomy, self-determination and freedom is predominant, which is why it is solely up to the patient to decide on all acts that interfere with their psychophysical integrity. In view of this, it is the medical professional’s duty to respect the patient’s expressed wishes, so that, regardless of the commitment of an error regarding the techniques and rules specific to his profession, the doctor may be held responsible for the intervention not consented to by the patient, the non-observance of one’s will and self-determination being, in itself, a motivating factor for the attribution of civil liability to the professional. Given this scenario, the objective of this research is to analyze, through the hypotheticaldeductive method and through bibliographical and exploratory research, the informed consent provided by the patient, the hypotheses in which medical civil liability will apply in the face of its violation or of its non-compliance, and also the hypotheses that allow the exemption of this consent. Finally, it remains to verify the results obtained throughout this work, as well as respond to ther problematization formulated.